United States District Court, W.D. Virginia, Roanoke Division
Elizabeth K. Dillon, United States District Judge.
Wayne Peery, a Virginia inmate proceeding pro se,
filed this petition for a writ of habeas corpus, pursuant to
28 U.S.C. § 2254, challenging the validity of his
confinement on a judgment by the Pittsylvania County Circuit
Court. Respondent filed a motion to dismiss, to which Peery
responded, making this matter ripe for disposition. Upon
review of the record, the court concludes that
respondent's motion to dismiss must be granted, and
Peery's § 2254 petition must be dismissed.
FACTUAL AND PROCEDURAL BACKGROUND
October 10, 1997, the Pittsylvania County Circuit Court
entered a final order convicting Peery of twenty-three counts
of forgery, twenty-six counts of uttering a forged check, one
count of eluding a police officer, and one count of reckless
driving, and sentenced him to a total of fifty-three years,
four months, and sixty days. The court suspended all but four
years and six months, and Peery was released and placed on
five years of supervised probation. After two separate
convictions while on probation,  Peery appeared before the
trial court on February 26, 2013 and was found guilty of
violating the terms of his probation for the second time.
Peery did not contest the probation violation, and the court
imposed the remaining balance of his previously suspended
sentences, which totaled forty-eight years, seven months, and
appeal, Peery did not dispute the probation violation, but
instead argued that the trial court abused its discretion in
imposing his suspended sentence. On May 25, 2013, Peery's
court-appointed counsel advised Peery by letter that he would
file a petition for a writ of error and send a copy of the
petition to Peery once it was filed. Peery and counsel
corresponded by mail further, despite counsel's failure
to respond to Peery's requests to send him documents
related to his appeal. On September 17, 2013, Peery wrote to
counsel advising him that he had been transferred from the
Amherst County Adult Detention Center to the Nottoway
Correctional Center, and counsel acknowledged receipt of that
letter on October 3, 2013.
thereafter, counsel informed Peery by letter dated October
16, 2013, that his petition for writ of error had been denied
that same date and that if Peery did not notify counsel by
October 28, 2013, to proceed further with his appeal, counsel
would close Peery's file. Peery claims that he wrote to
counsel again on October 17, 2013, requesting that counsel
continue with the appeal. On March 23, 2014, Peery sent another
letter to notify counsel that he has been transferred to the
River North Correctional Center (“RNCC”) and had
not received any of the requested copies of his filings. Over
two months later, on July 1, 2014, Peery again attempted to
contact counsel by letter, requesting an update on his case
and stating that he never received the copies.
not receiving any response from counsel, Peery filed a
complaint with the Virginia State Bar (“VSB”) on
October 10, 2014, stating that he had not been contacted by
counsel since October 16, 2013, and, consequently, had no
knowledge of the status of his appeal. By letter dated May 6,
2015, the VSB informed Peery that it had completed the
investigation into his pending bar complaint. The VSB
determined that counsel had failed to act with the requisite
level of reasonable diligence and promptness in representing
Peery pursuant to Rule 1.3 of the Virginia State Bar Rules of
October 8, 2015, Peery filed a petition for a writ of habeas
corpus in the Supreme Court of Virginia claiming counsel was
ineffective for abandoning him on appeal. The petition was
dismissed on December 14, 2015, as untimely pursuant to
Virginia Code § 8.01-654(A)(2). (Order, Peery v.
Dir. Dep't. of Corr. of Va., Record No. 151521, (Va.
Dec. 14, 2015)).
February 18, 2016,  Peery signed and dated his initial
petition for writ of habeas corpus in the U.S. District Court
for the Western District of Virginia pursuant to 28 U.S.C.
§ 2254, which the court received on February 22.
(Peery v. Va. Dep't. of Corr., No. 7:16cv00070
(W.D. Va. March 14, 2016) (Docket No. 21, Ex. 5E)).
Peery's petition alleged that defense counsel was
ineffective for not continuing Peery's appeal of the
February 2013 probation revocation sentence. The court
notified Peery that his petition appeared to be untimely
under 28 U.S.C. § 2244(d) and ordered Peery to provide
further information on the issue of timeliness within ten
days from Sunday, February 26, 2016. Peery did not file a
timely response to this order, and by opinion entered March
14, 2016, the court dismissed the case without prejudice.
in response to the dismissal order entered on March 14, 2016,
Peery offered evidence that prison mailroom delays caused him
to receive the court's February 26, 2017 order late.
Peery did not receive the order until March 9, 2016, the date
that his response was due to the court. Peery did not move
for reinstatement of his initial petition, No. 7:16CV0070.
13, 2016, the court received Peery's present habeas
petition, signed and dated on May 9, 2016. As in the initial
petition, he challenges his confinement under the February
2013 state probation revocation order, based on counsel's
alleged abandonment of him on appeal. Again, the court
notified Peery that his habeas claim was untimely filed and
granted him an opportunity to present additional argument on
that issue, which he has done. Thereafter, respondent filed
the motion to dismiss Peery's petition as untimely and
procedurally barred. Peery responded, making this matter ripe
the Antiterrorism and Effective Death Penalty Act (AEDPA), a
one-year statute of limitations applies when a person in
custody pursuant to a state court judgment files a federal
petition for a writ of habeas corpus. 28 U.S.C. §
2244(d)(1)(A-D). Generally, this period begins to run from
the date on which the judgment becomes final by exhausting
the availability of direct review. See 28 U.S.C.
§ 2244(d)(1)(A). However, the time during which a
“properly filed” state habeas petition is pending
is not counted towards the limitations period. 28 U.S.C.
challenge to the February 2013 revocation order is clearly
untimely under § 2244(d)(1)(A). Direct review of the
revocation order concluded, and Peery's federal habeas
time clock began to run, on November 15, 2013, thirty days
after the Court of Appeals of Virginia denied his appeal on
October 16, 2013. See Va. Sup. Ct. R. 5:14 (allowing
30 days from date of judgment to note an appeal). Peery then
filed a state habeas petition in the Supreme Court of
Virginia on October 8, 2015. The state habeas court dismissed
Peery's petition on December 14, 2015, as untimely,
pursuant to Virginia Code § 8.01-654(A)(2). Because the
state habeas court found Peery's petition to be untimely,
and therefore improperly filed, the filing and pendency of
the petition did not toll the federal filing period under
§ 2244(d)(2). Moreover, under § 2244(d)(1)(A),
Peery's one-year federal filing period expired on
November 15, 2014, well before he filed his state petition,
another reason that the state petition did not toll the
federal time clock. Furthermore, even if the court considered
Peery's claim as having been filed in February 2016, in
his first federal habeas petition, he did not bring that case
until more than a year out of time under § 2244(d)(1).
has not asserted that his § 2254 petition is timely
under the other three subsections of § 2244(d), and the
court finds no basis for so finding. Peery's case and
petition do not implicate any state-created impediment to his
presentation of the current claim so as to trigger §
2244(d)(1)(B). His case also does not involve any new rule of
constitutional law declared in a recently decided and
retroactively applicable decision of the United States
Supreme Court, so as to invoke § 2244(d)(1)(C). Lastly,
with due diligence, Peery could have discovered his
attorney's alleged misconduct long before May 6, 2015,
when the VSB concluded its investigation on his complaint.
Peery knew the facts about his attorney's errors by the
time he initially filed the VSB complaint in October,
2014. Thus, Peery does not state facts
justifying calculation of his federal filing period beginning
on May ...